Measuring Arbitration's Effectiveness in Addressing Workplace Harassment

Authors

Stacy A. Hickox
Michelle Kaminski

Abstract

The damage caused by workplace harassment for both targets and the employer calls for a fresh look at how harassment should be addressed in American workplaces. This study analyzes both judicial review of employers' responses to harassment and arbitration awards resolving grievances filed by alleged harassers to resolve the question of how employers should respond to alleged workplace harassment. The viability of arbitration as an alternative to the court's mandate to exercise reasonable care is particularly important given the pervasiveness of both harassment and arbitration programs. Awards reviewing discipline imposed on alleged harassers under the just cause standard demonstrate how harassment can be addressed appropriately outside of the typical litigious approach, but only if the parties creating the arbitration program and the surrounding policies provide an adequate framework to do so. Statistical analysis demonstrates which factors most influence the outcomes in arbitration awards. These awards also point out weaknesses in relying on arbitration to address harassment, many of which can be addressed by policies and collective bargaining agreements ("CBAs") dedicated to eradicating harassment in the workplace. The paper highlights some unique and creative approaches to harassment demonstrated through arbitration awards, which review the discipline imposed on harassers, and suggests the provision of accommodations for targets of harassment as well as other opportunities for CBAs to address harassment.

Recommended Citation

Hickox, Stacy A. and Kaminski, Michelle (2019) "Measuring Arbitration's Effectiveness in Addressing Workplace Harassment," Hofstra Labor & Employment Law Journal: Vol. 36: Iss. 2, Article 4.
Available at: https://scholarlycommons.law.hofstra.edu/hlelj/vol36/iss2/4